CPY EXS 9965 016311 10

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SHORT FORM ORDER
SUPREME COURT- NEW YORK STATE- NASSAU COUNTY
PRESENT:
PARGA
HON. ANTHONY

L.

JUSTI CE

PART 8

WESTCHESTER MEDICAL CENTER , As
Assignee of ANDREW NECKMAN , ST.
BARNABAS HOSPITAL , As Assignee ofDANIA
HERNANDEZ
Plaintiff s),
-against -

INDEX NO. 16311/10
MOTION DATE: 08/18/11
SEQUENCE NO. 003 , 004

UNITRIN DIRECT PROPERTY & CASUALTY
COMPANY
Defendant( s).
---- - --- --- ---- -- -- X

Notice of Motion , Affs. & Exs...................... .......
Notice of Cross- Motion , Affs. & Exs.......................................................................
Affirmation in Opposition and Reply......
Reply Affirmation.....................................................................................................

Defendant's motion for summary judgment , pursuant to CPLR

3212 , is granted , and

plaintiffs cross-motion for summary judgment , pursuant to CPLR 93212

, is denied.
The plaintiff health care providers and assignee of no- fault benefits commenced this
action against the defendant , the insurer of the two assignors
, to recover first party No Fault
benefits. The actions were commenced by plaintiff, Westchester Medical
, as assignee of Andrew
Neckman , and St. Barnabas Hospital , as assignee of Dana Hernandez
, in two separate causes of
action arising from two separate motor vehicle accidents.

Defendant moves for summary judgment on both causes of action.
With respect to the
claim on behalf of Andrew Neckman , defendant contends that on July 9
, 2010 , it received the
subject bill for $79,428.28 (with undisputed proper nofault DRG code adjustments to
$21 995. 28) for medical services provided to Andrew Neckman on June 12
2010 by Westchester
Medical. Defendant contends that it then sent plaintiff
and plaintiff's assignor timely verification
letters on July 16 , 2010 and August 16 , 2010 requesting the radiology report

, operative report
admission record , discharge record , documentation to support services billed
, emergency room

report and medical report needed to support treatment given. On September 17, 2010 , defendant
received the requested information. Thereafter , on October 6 2010 , defendant contends that it
timely issued payment in the amount 01'$21 995. , the full amount alleged in plaintiffs

summons and complaint. Defendant argues that it timely issued payment within nineteen days of
receiving the requested information on September 17 20 I O. In support of its motion , defendant
has submitted the denial of claim form , bill , verification letters , cancelled check , and affdavit of

service. It also submits the affidavit of Susan VanDitto , a no- fault litigation examiner employed
by the defendant , in which Ms. VanDitto attests that the bil was received on July 9 , 2010 , that
verification letters were timely sent on July 16 , 2010 and August 16 , 2010 , that the requested
information was received on September 17 , 2010 , and that the full amount of $21 , 995. 28 was
paid on October 6 , 20 I O. As such , defendant argues that it is entitled to summary judgment with

respect to the claim on behalf of Andrew Neckman.
In opposition , and in support of its cross-motion for summary judgment , plainti 1'1'

contends that it sent the complete medical records on the hospital admission for Andrew
Neckman to the defendant by certified mail on July 16 2010. It also contends that the medical
records sent included all of the medical documents requested by the defendant. In support
same , plaintiff submits a signed certified mail receipt dated July 20 , 20 10 which contains the
notation " Medical

Record Andrew Neckman.

Plaintiff also submits an affdavit of Sharon
Shafi , a secretary employed by Hospital Receivable Systems for the no- fault accounts of
Westchester Medical Center , wherein Ms. Shafi attests that she mailed the complete medical
records to the defendant on the hospital admission for Andrew Neckman on July 16 2010 and
that receipt of same by the defendant was confirmed by the return receipt for the certified mail.

She further attests that said medical records contained the admission record dischar e record
emergency room report " and the documentation and reports requested in the defendant'
verification request." The Court notes that Ms. Shafi' s affdavit fails to state specifically that she
provided the defendant with the requested radiology report , operative report , or

documentation/medical reports to support the services billed.
Plaintiff also submits an affidavit of Peter Kattis , a billing supervisor and account
representative employed by Hospital Receivables System , Inc. for the no- fault accounts of

Westchester Medical Center. Mr. Kattis attests that on July 6 , 2010 , he billed the defendant for
the sum of $21
on July 9 ,

995. 28 via ce11ified mail and received confirmation that defendant received same

2010. Plaintiff also submits the cel1ified mail receipt and return receipt for same. As
such , plaintiff argues that defendant' s October 6 2010 payment of such bill was untimely and
that it is entitled to summary judgment on its interest and attorneys fees.

Defendant has made a prima facie showing of entitlement to summary judgment on the
claim of Westchester Medical Center a/a/o Andrew Neckman , and the plaintiff has failed to raise

a triable issue of fact suffcient to defeat such showing and has failed to make a prima facie
showing of entitlement to summary judgment in its favor regarding the payment of interest and
attorneys fees with respect to this claim. The affdavit of Susan VanDitto , together with the
denial of claim form , bill , verification letters , cancelled check , and affidavit of service establish

that verification letters were timely sent to plaintiff and that the information requested in by the

defendant in its verification letters was not received by the defendant until September 17 2010

after which defendant timely issued full payment within nineteen days. No- fault benefits are
overdue if not paid within 30 calendar days after the insurer receives all of the relevant
information requested in its verification.

(See 11 NYCRR 9965- 8(a)(1), 65-

, and 65- 5).

The 30 day time period to payor deny a claim is extended when the defendant requests additional

verification within 15 business days of receipt of the claim , and once the defendant makes a
timely request for verification , the time to payor deny the claim is tolled until the plaintiff
(See , New York Presbyterian Hosp.

provides the verification information to the defendant.

American Transit Ins. Co. 287 A.D. 2d 699 , 733 N. Y.S.2d 80 (2d Dept. 2(01);
Imaging, p.

v. Nationwide Mutual Ins. Co. I I Misc. 3d

135(A),

Ocean Diagnostic

816 N. Y.S.2d

698 (App.

Term. 2006)).

The affdavits of Peter Kattis and Sharon Shafi , submitted on behalf of plaintiff: are
insufficient to create triable issues of fact to defeat defendant's motion and are insufficient to
make a prima facie showing of entitlement to summary judgment on plaintiff's cross-motion.
Both affiants work for Hospital Receivables Systems , Inc. , which is not a party to this action , and
neither affiant provides any evidence regarding the nature of the relationship between this third

party and Westchester Medical. Mr. Kattis fails to set forth the business practice and procedures
that demonstrate that the plaintiff provided medical services to its assignor and that bills were
generated and mailed to the defendant.

(.'Jee ,

Dan Medical, P.

v. New York Central Mutual

14 Misc3d 44 829 N. Y.S. 2d 404 (App. Term. 2(06)). In addition , and more
significantly, Ms. Shafi' s affidavit fails to specify that she sent the requested radiology report and

Fire Ins. Co.

operative report to defendant on July 16 , 2010. Her conc.lusory statement that she provided " the

documentation and reports requested in the defendant's verification request" is

insuffcient to

demonstrate that she sent each of the requested documents listed in defendant' s verification letter
to the defendant on July 16 2010.
(See , Thr(ft Credit Corp. v. American Overseas Trading
Corp. 54 A.D. 2d 994 , 387 N. Y.S. 2d 930 (3d Dept. 1976)(holding that the defendant was

required to assemble , lay bare , and reveal his proofs in order to show that his defenses are real

and capable of being established upon a trial). Further , the return receipt dated July 20 2010
does not confirm or demonstrate what documents were mailed to the defendant at said time. In

addition , while plaintiff annexes the July 16 , 2010 letter of Sharon Shafi which states that

enclosed is the medical record with respect to the above referenced patient's hospitalization

plaintiff fails to annex the medical record or records allegedly sent therewith. As such , the
plaintifThas failed to raise a triable issue of fact suffcicnt to defeat plaintiffs prima facie
showing that the bill was paid timely after receipt of the information requested in its timely
verification letters.

With respect to the claim brought on behalf of Dania Hernandez , defendant argues that

the bil from St. Barnabus was timely denied based upon the assignors failure to submit to an
IME , in violation of a condition of the policy. The subject bill in the amount of $8 922. 68 for
medical services provided to assignor Dania Hernandez from May 23 2010 through May 24

2010 was received by defendant on July 20 , 20 10. Defendant sent plaintiff and plaintiff's

assignor a verification letter requesting additional infhrmation on August 9 , 2010. On August
2010 , defendant received the requested inihrmation. Defendant' s review of the subject bill
and relevant documents revealed that the assignor s failure to attend the (2) scheduled IMEs was

a policy violation which precluded coverage. Accordingly, defendant argues that on August 17
2010 , within thirty days from its receipt of the bill , it timely denied the claim upon said grounds.

Defendant contends that Alternative Consulting and Examinations (hereinafter " ACE" ) mailed
an IME scheduling letter , by certified and regular mail , to the plaintiffs assignor , Dania
Hernandez , at the address listed on her no- fault application , on July 15 , 20 10 , advising her of her

appointment with neurologist , Dr. Feuer , to be held on July 29 , 2010. After Ms. Hernandez
missed said appointment , ACE again mailed an IME scheduling letter , by certified and regular
mail , to the plaintiff's assignor , Dania Hernandez , at the address listed on her no- fault
application , on .Tuly 30 , 2010 , advising her of her rescheduled appointment with neurologist

, Dr.

Feuer, to be held on August 12 2010. In supp0I1 of its contentions regarding Ms. Hernandez
notification of the appointments , defendant submits both IME scheduling notices
, as well as the
postmarked certificates of mailing indicating that same were mailed to Dania Hernandez at the

address listed in her no- fault application. In addition , defendant submits the affdavit

of .Tim

Cannon , owner and CMO of ACE. Mr. Cannon attests that the scheduling

letters were mailed to
Ms. Hernandez as noted above. He also attests that nonc of the notices were returned by the

postal service as being undeliverable. Defendant further submits an affrmation by Dr. Feuer
which Dr. Feuer affirms that Dania Hernandez failed to appear for her scheduled phsycial
examination appointments on July 29 2010 and August 12
2010. As such , and as Ms.

Hernandez s appearance at the designated IME appointments was a condition precedent to
coverage , the defendants argue that they are entitled to summary judgment with respect to the

claim on behalf of Dania Hernandez. In the alternative to said relief, defendant argues that it is
entitled to summary judgment on the issue of defendant' s timely denial of the subject bill as it
has presented proof in admissible form to show that the denial was timely.
In opposition , although plaintiff admits that the bill was received by defendant (as

evidenced by the return receipt) on July 19 , 20 10 and that defendant issued a denial of same on
August 17

2010 , plaintiff contends that the defendant has failed to submit evidentiary proof that

the IME notices were actually mailed to the assignor. Plaintiff contends that the defendant issued

a denial of claim upon the grounds that the assignor failed to appear at her scheduled IMEs on
July 29

2010 , but argues that the affidavit of Jim Cannon is insuffcient to
establish that the IME notices were actually mailed. Plaintiff contends that Mr. Cannon fails to
2010 and August 12

state how he acquired personal knowledge of the mailings and that his statements are insuffcient
to prove that the IME notices were actually sent or that the notices were properly addressed.
Plaintiff also argues that the defendant does not submit the IME notices that were sent to the
assignor , but the Court notes that same were annexed to defendant's motion as Exhibits C and D.

Defendant has made a prima facie showing of entitlement to summary judgment on the

claim of St. Barnabus Hospital a/a/o Dania Hernandez , and the plaintiff has failed to raise a

triable issue of fact sufficient to defeat such showing. When plaintiff's assignor failed to appear
for the requested IMEs , defendant had the right to deny all claims retroactively to the date of loss

(Unitrin Advantage Ins. Co. v. Bayshore
Physical Therapy, PLLC 82 A. D. 3d 559 , 918 N. Y.S. 2d 473 (I sl Dept. 2011);
See also, Stephen
regardless of whether the denials were timely issued.

Fogel Psychological,

P.

e. v. Progressive 35 A.D. 3d 720 , 827 N. Y.S. 2d

717(assignor breached a

condition precedent to payment on the policy by failing to appear for IMEs).
Plaintiff does not
contest the timeliness of the mailing of defendant's denial of said claim
, but argues that the
defendant does not demonstrate that the IME notices were mailed to plaintiff's assignor. T'
defendant has , however , suffciently demonstrated the timely mailing of said notices
, as well as
Ms. Hernandez s failure to appear for the scheduled examinations
, through the affidavit ofJim
Cannon , together with copies of the IME notices and the postmarked certificates of mailing
properly addressed to Dania Hernandez , and the affdavit of Dr. Feuer. In opposition
, plaintiff
has failed to submit evidence sufficient to create a question of fact regarding the notice of the
IMEs to its assignor.
Accordingly, defendant' s

motion for summary judgment on both causes of action are
granted and plaintiff's cross-motion is denied.

This constitutes the decision and order of this court.
Dated: October 12

Cc:

2011

Gullo & Associates
520 86 Street
Brooklyn , NY 11209
Law Offices of Joseph Henig, P.
1598 Bellmore Avenue
O. Box 1144
Bellmore , NY 1 I 710

ENTERED
OCT 17 2011
NASSAU COUNTY
COUNTY

Cl!

OFFiCE



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